TikTok Files Legal Brief to Challenge Divest-or-Ban Law

In this photo illustration, the social media application logo, TikTok is displayed on the screen of an iPhone on an American flag background in Arlington, Va., on Aug. 3, 2020. Olivier Douliery/ AFP via Getty Images

TikTok and its Chinese parent company, ByteDance, filed a legal brief on June 20, kicking off a fast-tracked schedule to challenge a divest-or-ban law signed by President Joe Biden on April 24. The law gives ByteDance a year to sell the short-video app, or it will be banned from mobile app stores and web-hosting services.

The brief largely reprised the petition filed at the U.S. Court of Appeals for the District of Columbia Circuit on May 7, asking the court to declare the new law unconstitutional and issue an injunction to prohibit the enforcement on grounds of freedom of speech.

“The Act is unprecedented,“ the counsels for petitioners—TikTok and ByteDance—stated in the legal brief. ”Never before has Congress expressly singled out and shut down a specific speech forum. Never before has Congress silenced so much speech in a single act.”

They stated that “a claim of national security does not override the Constitution.”

In the filing, the petitioners included a national security risk mitigation plan that ByteDance proposed in August 2022. They stated that the company had voluntarily invested more than $2 billion in the plan, also known as “Project Texas,” moving toward storing U.S. consumer data in the cloud hosted by U.S.-based Oracle Corp.

The Committee on Foreign Investment in the United States (CFIUS), the other party ByteDance and TikTok negotiated the national security agreement with, stopped engagement in September 2022, according to the legal brief. Petitioners’ counsels said CFIUS informed the companies in March 2023 that “‘senior government officials’ demanded divestment—without explaining why the Agreement was insufficient.”

The legal brief also contains a one-pager, or summary, that the Department of Justice (DOJ) provided to members of Congress a month before legislators approved the divest-or-ban bill with bipartisan support. In the memo, the DOJ cited “PRC influence” as a major concern in addition to data privacy.

PRC is the acronym for China’s official name, the People’s Republic of China.

“TikTok’s content selection relies on a proprietary PRC-based algorithm, creating the potential for the PRC to influence content on TikTok—without United States visibility,” the DOJ memo reads.

It mentioned an additional application security issue.

“TikTok’s source code and some operations are based in the PRC, which creates the potential for the PRC to exploit them for other potentially malign uses,” the memo reads.

The algorithm and its source code seem to be the core issue.

The petitioners’ counsels said the divestiture wasn’t feasible because of the reliance on program code development and technical support from ByteDance employees. The legal brief also cites that the PRC “would not permit a forced divestment of the recommendation engine,” referring to the algorithm that recommends content to TikTok users in their “for you” feed.

“Even if divestiture were feasible, TikTok in the United States would still be reduced to a shell of its former self, stripped of the innovative and expressive technology that tailors content to each user,” the counsel said.

The initial deadline for the forced TikTok sale is Jan. 19, 2025, before the next presidential inauguration day. According to the law, President Biden can extend the deadline by three months to allow the deal to be completed.

The case is on a fast-tracked schedule, with oral arguments set to start on Sept. 16. The DOJ and TikTok/ByteDance have asked the court for a ruling by Dec. 6 to allow for a potential review by the Supreme Court before the Jan. 19 deadline.

Content creators’ petitions, funded by TikTok, have been consolidated into the same case. They filed a separate legal brief, stating that a ban on TikTok would be a “devastating blow” to their businesses.

The DOJ’s response is due by July 26.